Supreme Court Justice Ruth Bader Ginsburg: I'm Not Going Anywhere

Coming off of her stirring dissent in the Hobby Lobby case, 21-year veteran Supreme Court Justice Ruth Bader Ginsburg has never been a more important voice for American women. In a rare interview—featured exclusively in the October issue of ELLE—she speaks frankly with Jessica Weisberg about everything from riding an elephant with Antonin Scalia to why people who want her to resign so President Obama can appoint another progressive justice are nuts.

Check out an excerpt from the 5,000-word piece below, and pick up the October issue to read the entire interview with Justice Ginsburg. And as a bonus, you'll also find the story of one of former ACLU lawyer Ginsburg's important early clients, Susan Struck—an Air Force nurse who was offered a stark choice when she got pregnant: quit the military or have an abortion.

You've said that the symbol of the U.S. shouldn't be an eagle but a pendulum. It seems to me that the pendulum has swung in a very conservative direction for women's rights, but not for gay rights. Why?

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To be frank, it's one person who made the difference: Justice [Anthony] Kennedy. He was a member of the triumvirate used to [reaffirm] Roe v. Wade in the Casey case, but since then, his decisions have been on upholding restrictions on access to abortion.

The first time you argued before the Supreme Court as a lawyer was in 1973, on behalf of Sharon Frontiero, an Air Force lieutenant who sued because under military rules she had to prove that her husband was "dependent" on her to get housing and medical benefits for him. [Servicemen, meanwhile, were automatically granted benefits for their wives.] What was it like to stand before the justices?

I had, I think, 12 minutes, or something like that, of argument. I was very nervous. It was an afternoon argument. I didn't dare eat lunch. There were many butterflies in my stomach. I had a very well-prepared opening sentence I had memorized. Looking at them, I thought, I'm talking to the most important court in the land, and they have to listen to me and that's my captive audience.

And then you relaxed?

I felt a sense of empowerment because I knew so much more about the case, the issue, than they did. So I relied on myself as kind of a teacher to get them to think about gender. Because most men of that age, they could understand race discrimination, but sex discrimination? They thought of themselves as good fathers and as good husbands.

Do you think the pendulum might swing back in a more progressive direction on women's rights in your lifetime?

I think it will, when we have a more functioning Congress.

What do you make of the term activist judge?

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Depends on whose ox is being gored. You think of activism, Congress is supposed to make the laws. So, it passed a campaign finance law. This court says, "No, Congress, you can't do that." This court is labeled conservative, but it has held invalid more statutes than most courts. That's why I say that activism is like "beauty is in the eye of the beholder." So the answer to the question: If a judge is called an activist, you know the person saying that doesn't like the decision.

It's part of Washington lore that you and Justice Scalia are good friends and opera buddies. I have to ask, when he says that the Constitution doesn't necessarily prohibit discrimination against women, isn't it hard not to take it personally?

Justice Scalia and I served together on the DC Circuit. So his votes are not surprising to me. What I like about him is that he's very funny and very smart.

[She points to a photograph.] That one shows the two of us in 1994 when we were on a delegation to India. So there we are on a very elegant elephant. My feminist friends say, "Why are you riding on the back of the elephant?" and I said, "Because of the distribution of weight, we needed to have Scalia in the front."

Does it make a difference having three women justices?

Yes, an enormous difference….When Sandra left, I was all alone…. Now Kagan is on my left, and Sotomayor is on my right. So we look like we're really part of the court and we're here to stay. Also, both of them are very active in oral arguments. They're not shrinking violets. It's very good for the schoolchildren who parade in and out of the court to see.

I know you can't comment on upcoming cases, but I've been reading about Young v. United Parcel Service, and I was wondering why you think pregnancy discrimination is still an issue.

I don't know why, but the Pregnancy Discrimination Act passed in 1978. It was just like the reaction to Lilly Ledbetter: This court said that discrimination on the basis of pregnancy is not discrimination on the basis of sex. How could you reach that conclusion? "Well, it only happens to a woman, so that's why it can't be discrimination on the basis of sex." So Congress passed a law that simply said, "Discrimination on the basis of pregnancy is discrimination on the basis of sex." So the case you mentioned, this was a woman whose doctor told her she couldn't lift more than, I think, 20 pounds. For people who were temporarily disabled, the employer would make an accommodation, but the employer said, "We're not making an accommodation for her because she's not disabled." [Due to UPS's denial, the employee, Peggy Young, had to take unpaid leave and lost her medical coverage for childbirth expenses.]

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Fifty years from now, which decisions in your tenure do you think will be the most significant?

Well, I think 50 years from now, people will not be able to understand Hobby Lobby. Oh, and I think on the issue of choice, one of the reasons, to be frank, that there's not so much pro-choice activity is that young women, including my daughter and my granddaughter, have grown up in a world where they know if they need an abortion, they can get it. Not that either one of them has had one, but it's comforting to know if they need it, they can get it.

The impact of all these restrictions is on poor women, because women who have means, if their state doesn't provide access, another state does. I think that the country will wake up and see that it can never go back to [abortions just] for women who can afford to travel to a neighboring state…

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When people realize that poor women are being disproportionately affected, that's when everyone will wake up? That seems very optimistic to me.

Yes, I think so…. It makes no sense as a national policy to promote birth only among poor people.

When it comes to abortion rights, does the pendulum have to swing in a more conservative direction before it starts to swing back?

No, I think it's gotten about as conservative as it will get.

I'm not sure how to ask this, but a lot of people who admire and respect you wonder if you'll resign while President Obama is in office.

Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they're misguided. As long as I can do the job full steam…. I think I'll recognize when the time comes that I can't any longer. But now I can.

If you were going to start a women's-rights project today like the one you started at the ACLU in the '70s, what would be the issues on your agenda?

Well, they wouldn't be what ours were. We had clear targets. That is, we wanted to get rid of every explicitly gender-based law, and the statute books were riddled with them, federal and state. Now discrimination is more subtle. It's more unconscious. I think unconscious bias is one of the hardest things to get at. My favorite example is the symphony orchestra. When I was growing up, there were no women in orchestras. Auditioners thought they could tell the difference between a woman playing and a man. Some intelligent person devised a simple solution: Drop a curtain between the auditioners and the people trying out. And, lo and behold, women began to get jobs in symphony orchestras. When I told this story a couple of years ago, there was a violinist who said, "But you left out one thing. Not only do we audition behind a curtain, but we audition shoeless, so they won't hear a woman's heels coming onstage."

Then these other things: How do you have a family and a family life and a work life? So some people are writing about Justice Sotomayor and Justice Kagan and saying to rise to the top of the tree in the legal profession, you have to forgo a family. Where are these people? What about Justice O'Connor? She had three sons. I have two children. Pat Wald was with me on the DC Circuit and had five children.

Your husband, Martin Ginsburg, was a tax-law expert and Georgetown professor. I know you married him a few days after you graduated from Cornell in 1954—he seems unusual among men of his generation. How did that make a difference in your career?

I met Marty when I was 17 and he was 18. He was the only boy I had ever met who cared that I had a brain. In the '50s, too many women, even though they were very smart, they tried to make the man feel that he was brainier. It was a sad thing. Marty had a wonderful sense of humor. He thought that I must be pretty good, because why would he decide that he wanted to spend his life with me? He always made me feel like I was better than I thought I was. He was so confident in his own ability that he never regarded me as any kind of threat. He also decided—and I was very lucky about this—that when my daughter was born, he read something that said the first year is very important, that's when the child's personality gets formed, so he spent a lot of time with my daughter when she was a baby.

This is an excerpt from the October 2014 issue of ELLE. To read the full interview, get your copy now, available at newsstands nationwide.

This story has been updated to reflect the following change: "[The Senate Democrats] took off the filibuster for lower federal court appointments," not the Senate Republicans, as previously written.